STATE BOARD OF EQUALIZATION STAFF LEGISLATIVE BILL ANALYSIS

STATE BOARD OF EQUALIZATION
STAFF LEGISLATIVE BILL ANALYSIS
Date Introduced:
12/02/02
Bill No:
SCA 1
Subject:
Open Meetings and
Public Records Act
Author:
Burton
Related Bills:
SCA 7 (Burton, 2002)
Board Position:
BILL SUMMARY:
This bill, a constitutional amendment that would require statewide majority voter
approval prior to going into effect, would amend Article I, Declaration of Rights, of the
California Constitution to provide that public access to government records and official
meetings of governmental bodies is a fundamental right of Californians.
This bill would: (1) make it a constitutional right to attend, observe, and be heard in the
meetings of elected and appointed public bodies, and to inspect and obtain copies of
records made or received in connection with the official business of any public body,
agency, officer, or employee; (2) stipulate that the Legislature could continue to enact
statutes for the protection of personal privacy; (3) authorize the Legislature to enact
statutes to limit the right of public access to government information to protect public
safety or private property, to ensure the fair and effective administration of justice, or to
provide for the preservation of public funds and resources; and (4) require that any
denial of access to information must be based on particularized findings that a specified
harm to the public interest cannot be averted by a reasonable alternative, unless the
information is confidential communication between an attorney and his or her client.
ANALYSIS
Current Law
Section 3 of Article I of the California Constitution states:
The people have the right to instruct their representatives, petition
government for redress or grievances, and assemble freely to consult for
the common good.
Various provisions of existing law provide for public access to government records and
meetings of government bodies. Those provisions include, among others, the BagleyKeene Open Meeting Act, the Ralph M. Brown Act, the California Public Records Act,
the Legislative Open Records Act, and the Grunsky-Burton Open Meeting Act.
The Bagley-Keene Open Meeting Act (commencing with Government Code Section
11120) requires that meetings of state bodies be conducted openly, and that public
writings pertaining to a matter subject to discussion or consideration at a public meeting
be made available for public inspection. All disclosable public writings that are
distributed to members of a state body are made available to the public upon request.
This staff analysis is provided to address various administrative, cost, revenue and policy
issues; it is not to be construed to reflect or suggest the Board’s formal position.
SCA 1 (Burton)
Page 2
The Bagley-Keene Act requires that state bodies provide notice of its meetings to any
person who requests such notice in writing. The notice shall include a specific agenda
for the meeting, which shall include the items of business to be transacted or discussed.
The public is provided the opportunity to directly address the state body on each
agenda item before or during the state body's discussion or consideration of the item.
Closed sessions may not be held by any state body except as expressly authorized by
the Bagley-Keene Open Meeting Act. Prior to holding any closed session, a state body
is required to cite the authority for the closed session.
Assembly Bill 1752 (Ch. 156, 2002), effective January 1, 2003, amended Section
11125.1 of the Bagley-Keene Act to require the Board of Equalization to distribute public
writings, except those involving a named tax or fee payer, that pertain to a topic under
consideration at a public meeting to all persons who request copies, as well as post that
information on the Internet, and make the writings available for public inspection at the
meeting, prior to the Board taking final action on that item.
The Ralph M. Brown Act (commencing with Government Code Section 54950)
requires that the meetings of local legislative bodies be conducted openly. The Brown
Act requires that a local public body post a notice and an agenda for any regular
meeting. Local public bodies are also required to provide a notice of its meetings to any
person who requests such notice in writing. Closed meetings are the exception and
permitted only if they meet defined purposes and follow special requirements.
The California Public Records Act, or PRA (commencing with Government Code
Section 6250), provides for public access to any record maintained by a state and local
agency, unless there is a statutory exemption that allows or requires the agency to
withhold the record. Confidential information, as specified within each tax or fee
program, is exempt from disclosure under the PRA and may not be released unless
specifically authorized by the Governor or with the taxpayer’s consent.
Under the PRA, public records are open to inspection at all times during the office hours
of the state or local agencies and any person has a right to inspect any public record,
unless exempt by statute. State and local agencies are required to establish written
guidelines for accessibility of records. Any denial for request of public records, in whole
or in part, must be in writing.
The Legislative Open Records Act (commencing with Government Code Section
9070) provides for public access to legislative records, unless exempt by statute.
Legislative records is defined as any writing which contains information relating to the
conduct of the public's business prepared, owned, used, or retained by the Legislature.
Legislature is defined as any Member of the Legislature, any legislative officer, any
standing, joint, or select committee or subcommittee of the Senate and Assembly, and
any other agency or employee of the Legislature.
The Grunsky-Burton Open Meeting Act (commencing with Government Code Section
9027) requires that meetings of a house of the Legislature or a committee shall be open
and public, and all persons shall be permitted to attend the meetings. Committee
includes a standing committee, joint committee, conference committee, subcommittee,
select committee, special committee, research committee, or any similar body.
This staff analysis is provided to address various administrative, cost, revenue and policy
issues; it is not to be construed to reflect or suggest the Board’s formal position.
SCA 1 (Burton)
Page 3
A house of the Legislature or a committee may hold a closed session solely for the
following purposes: (1) to consider the appointment, employment, evaluation of
performance, or dismissal of a public officer or employee, and to consider complaints or
charges brought against a Member of the Legislature or other public officer or
employee; (2) to consider matters affecting safety and security; (3) to confer with legal
counsel regarding pending litigation when discussion in open session would not protect
the interests of the house or committee regarding the litigation; and (4) to hold Senate
and Assembly caucuses.
Proposed Law
This bill would amend Section 3 of Article I of the California Constitution to provide that
access to information concerning the conduct of the people's business is a fundamental
and necessary right of every person in this state. Public agencies and officers exist to
aid in the conduct of the people's business, and their actions and deliberations shall be
open to public scrutiny. Specifically, SCA 1 would:
•
Provide that people have a right to attend, observe, and be heard in the meetings of
elected and appointed public bodies, and to inspect and obtain copies of records
made or received in connection with the official business of any public body, agency,
officer, or employee, or anyone acting on their behalf. Information concerning the
people's business includes information regarding the official performance or
professional qualifications of elected officials or of appointed officials who have, or
appear to have, substantial responsibility for the conduct of governmental affairs.
This information also includes information regarding the professional qualifications of
candidates or applicants for these elective or appointive positions.
•
Provide that this constitutional amendment may not be construed to supersede the
right to privacy contained in Article I, Section 1 of the California Constitution.
Additionally, it would not limit the ability of the Legislature to provide laws, or the
Judicial Council to provide rules consistent with statute, for the protection of personal
privacy.
•
Authorize the Legislature to provide by statute and the Judicial Council to provide by
rule (consistent with statute) to limit the right of access to information concerning the
conduct of the people's business solely to protect public safety or private property, to
ensure the fair and effective administration of law, or to preserve public funds and
resources.
•
Require that denial of public access to information by a public body, agency, officer,
or employee must be based on particularized findings that a specific harm to the
public interest cannot be averted by reasonable alternatives, unless the information
requested is a confidential communication between an attorney and his or her client.
The denial of access could be no broader in scope or longer in duration than
necessary to avert the specified harm.
This staff analysis is provided to address various administrative, cost, revenue and policy
issues; it is not to be construed to reflect or suggest the Board’s formal position.
SCA 1 (Burton)
Page 4
•
Limits availability of information relating to peace officers by requiring requests for
information to conform to procedures governing discovery or disclosure enacted by
the Legislature.
•
Provide that this constitutional amendment would not apply to judicial proceedings or
the records of judicial proceedings.
•
Stipulate that all statutes and rules of court limiting access to information concerning
the conduct of the people's business that are in effect on the operative date of this
constitutional amendment shall remain in effect until amended, repealed, or
judicially determined to be inconsistent with this constitutional amendment.
Background
This bill is identical to SCA 7 (Burton) of the 2001-2002 Legislative Session. SCA 7,
sponsored by the California Newspaper Publishers Association (CNPA) and the
California First Amendment Coalition (CFAC), died in the Assembly. The CNPA and
the CFAC believe that SCA 7 would have strengthened and complemented the several
existing statutes that protect the public's right to know, including the Ralph M. Brown
and Bagley-Keene open meeting laws and the PRA. Both of these organizations, as
well as other supporters, believe that the purpose of SCA 7 is to define just how open
government should be. Supports believe that while there are open government laws,
none of these laws have constitutional status, and all too often statutory and case law
exceptions have allowed government business to occur in secret.
Opponents of SCA 7 believe that the measure would jeopardize existing legislatively
determined exceptions to public access and lead to costly litigation. Opponents argue
that the Legislature, rather than the courts, should make the final determination of what
constitutes an exception to public access.
Opponents also contend that the
requirement to make "particularized findings" is unworkable and that the definition of an
appointed official is vague. Finally, opponents expressed concern that certain existing
exemptions of the PRA protecting the trade secrets or the gross receipts of a business
may not survive a court challenge under the provisions of SCA 7.
COMMENTS:
1. Sponsor and purpose. This bill is also sponsored by the CNPA and the CFAC in
an effort to make government more open. According to these organizations, "A
fundamental tenant of democracy is that the government's business is the people's
business; therefore, the public should not have to prove that a record or proceeding
should be open, rather the burden should be upon government to demonstrate why
a record or proceeding should remain secret."
According to the author's staff, the purpose of this bill is to give Californians the right
to: (1) define how open their government should be; (2) know what their government
is doing; (3) express their views by being able to attend meetings of key government
This staff analysis is provided to address various administrative, cost, revenue and policy
issues; it is not to be construed to reflect or suggest the Board’s formal position.
SCA 1 (Burton)
Page 5
bodies and be heard in those meetings; and, (4) find out information held in
government records.
2. The requirement that a public body's denial of access to information must be
based on findings that a specified harm to the public could not be reasonably
averted, creates uncertainty and invites litigation. This bill would require that a
state agency's restriction of access to information must be based on particularized
findings that a specified harm to the public cannot be averted by a reasonable
alternative. This bill also requires that the denial of a right may not be broader in
scope or duration than necessary to avert the specified harm.
State agencies are statutorily required to disclose records requested in writing by
any person. However, state agencies may withhold information based on statutory
exemptions.
This provision of the bill makes every decision to limit access subject to
interpretation and, therefore, invites litigation.
It subjects existing statutory
exemptions and protections contained in both the PRA and the Bagley-Keene Act to
legal challenge and removes state agencies ability to rely on statutory language and
policy direction contained within these acts.
3. Existing statutes and rules limiting access to information could be found to be
unconstitutional and in violation with the provisions of this bill. This bill would
provide that all statutes and rules of court limiting access to information shall remain
in effect until they are amended, repealed or judicially determined to be inconsistent
with the provisions of this bill.
It is unclear the extent that existing statutes and
rules could eventually be found to be invalid.
4. The term "appointed officials" needs clarification. This bill would allow access
to information regarding the official performance or professional qualifications of
elected and appointed officials. An argument can be made that all public employee
positions are "appointed." It is recommended that language be added to clarify
those position classifications covered under "appointed officials." Does "appointed"
include career executive assignments (CEA)? The Board currently has 33 CEA
positions, which include, among others, the Board's Chief Counsel, Assistant Chief
Counsels, Deputy Directors, Chief of Field Operations, other division Chief positions,
Headquarter Operations Manager, and Program Planning Manager.
5. Existing open meeting laws require that the Board and other state agencies
provide for public comment at public meetings. This bill would provide that the
people have a right to be heard in the meetings of public bodies. At Board meetings,
the public is provided the opportunity to address the Board on any agenda item, as
well as any matter within the scope of the Board's functions. The public is also
provided the opportunity to participate in the formulation of rules, regulations, and
audit guidelines adopted by the Board.
6. Confidential taxpayer information currently exempt from disclosure may be
subject to disclosure under the provisions of this bill. This bill would provide
that the people have a right to inspect and obtain copies of records in connection
with the official business of a public body.
Public meeting agendas, minutes of
This staff analysis is provided to address various administrative, cost, revenue and policy
issues; it is not to be construed to reflect or suggest the Board’s formal position.
SCA 1 (Burton)
Page 6
public meetings of the Board including exhibits incorporated by reference, and
documents distributed to Board Members for discussion or consideration at a public
meeting are public records subject to disclosure unless exempted from disclosure by
state or federal law. Documents exempted from disclosure include, but are not
limited to, documents, such as hearing briefs or Appeals Division Decisions and
Recommendation, that are comprised of confidential taxpayer information, and
memoranda from Board legal staff or the Attorney General to Board Members, which
are confidential communications between client and attorney. This constitutional
amendment may jeopardize confidential taxpayer information, which is currently
exempt from disclosure under the PRA and other privacy statutes.
COST ESTIMATE:
The Board already complies with the various open government statutes. Therefore, any
costs associated with this bill would be absorbable.
REVENUE ESTIMATE:
This bill would not impact state revenues.
Analysis prepared by:
Contact:
Debra A. Waltz
Margaret S. Shedd
324-1890
322-2376
01/15/03
SCA1-1dw.doc
This staff analysis is provided to address various administrative, cost, revenue and policy
issues; it is not to be construed to reflect or suggest the Board’s formal position.